Asch v. Gillispie

Appellate Division of the Supreme Court of New York

Asch v. Gillispie

14 A.D.2d 543, 218 N.Y.S.2d 247, 1961 N.Y. App. Div. LEXIS 9642

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJuly 5, 1961

StatusPublished

This text of 14 A.D.2d 543 (Asch v. Gillispie) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Asch v. Gillispie, 14 A.D.2d 543, 218 N.Y.S.2d 247, 1961 N.Y. App. Div. LEXIS 9642 (N.Y. Ct. App. 1961).

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Opinion

The record contains no proof of “practical difficulties or unnecessary hardships” within the meaning of paragraph B of section 801 of article VIII of the local zoning ordinance (cf. Matter of Otto v. Steinhilber, 282 N. Y. 71; Matter of Forrest v. Evershed, 7 N Y 2d 256). Hence, we find no such difficulties or hardships here. A general restriction may not be destroyed “ by piece-meal exemption of pieces of land equally subject to the hardship created in the restriction” (Matter of Levy v. Board of Standards & Appeals, 267 N. Y. 347, 353-354). The remedy in such ease is by amendment of the zoning ordinance (Matter of Ostrove v. Cohen, 269 App. Div. 1054), which may not be done under the guise of a variance (Matter of Miller v. Silver, 278 App. Div. 962). Furthermore, it appears that, at the time of and for a considerable period prior to the purchase of the subject property by the intervenors-respondents, it was located in a district in which a two-family residence was not a permitted use. Under such circumstances a use variance may not be granted on the ground of hardship (Matter of Clark v. Board of Zoning Appeals, 301 N. Y. 86). Nolan, P. J., Beldoek, Ughetta, Pette and Brennan, JJ., concur.

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The record contains no proof of “practical difficulties or unnecessary hardships” within the meaning of paragraph B of section 801 of article VIII of the local zoning ordinance (cf. Matter of Otto v. Steinhilber, 282 N. Y. 71; Matter of Forrest v. Evershed, 7 N Y 2d 256). Hence, we find no such difficulties or hardships here. A general restriction may not be destroyed “ by piece-meal exemption of pieces of land equally subject to the hardship created in the restriction” (Matter of Levy v. Board of Standards & Appeals, 267 N. Y. 347, 353-354). The remedy in such ease is by amendment of the zoning ordinance (Matter of Ostrove v. Cohen, 269 App. Div. 1054), which may not be done under the guise of a variance (Matter of Miller v. Silver, 278 App. Div. 962). Furthermore, it appears that, at the time of and for a considerable period prior to the purchase of the subject property by the intervenors-respondents, it was located in a district in which a two-family residence was not a permitted use. Under such circumstances a use variance may not be granted on the ground of hardship (Matter of Clark v. Board of Zoning Appeals, 301 N. Y. 86). Nolan, P. J., Beldoek, Ughetta, Pette and Brennan, JJ., concur.

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Bluebook (online)

14 A.D.2d 543, 218 N.Y.S.2d 247, 1961 N.Y. App. Div. LEXIS 9642, Counsel Stack Legal Research, https://law.counselstack.com/opinion/asch-v-gillispie-nyappdiv-1961.

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